EFF says FBI gag orders violate service providers’ free speech rights

A telephone company wants national security letters declared unconstitutional.

The Electronic Frontier Foundation has released redacted copies of key documents in a constitutional challenge to national security letters (NSLs). These controversial legal tools give the FBI warrantless access to private customer information held by businesses. The law gives the FBI the power to ban a business receiving an NSL from disclosing its existence, but EFF contends that this runs afoul of the First Amendment.

The challenge is being brought by a telephone company that does business in California. Not much else is known about it. The Wall Street Journalspeculates that the company may be Credo, a wireless reseller. Its parent company is Working Assets, known for giving millions of dollars to liberal groups, including the Electronic Frontier Foundation.

News of the case surfaced only this week, but the NSL at the heart of the dispute was sent to the company early last year. When the firm objected, the government filed a complaint seeking to compel the firm to comply. With support from EFF, the company responded by challenging the constitutionality not only of the specific letter but of the entire NSL statute.

A history of abuses

NSLs have proven ripe for abuse by the government. A 2007 audit by the Office of Inspector General found (as we put it at the time) "an agency with poor record-keeping, inadequate safeguards, and a cavalier attitude toward the rights of ordinary Americans." Subsequent reports in 2008, 2009, and 2010 found continued problems.

Hundreds of thousands of NSLs have been issued over the last decade, but only a handful of challenges have been reported. The first challenge, eventually revealed to involve Nicholas Merrill of Calyx Internet Access, resulted in an appeals court ruling that the NSL procedure Congress had authorized violated the First Amendment. But rather than strike down the entire law, the court allowed the FBI to modify its procedures in order to give letter recipients more opportunity to challenge the letters.

But EFF argues that these changes don't go far enough in protecting free speech rights. The organization notes that the courts have only allowed prior restraint—government regulation of speech prior to publication—when the speech poses a "specific, articulable risk of direct, immediate, and irreparable harm." EFF contends that NSL gag orders don't come close to meeting this standard, since they only require the FBI to certify that disclosure "may result" in harm to national security.

"A puzzling argument"

Incredibly, the FBI claims that a gag order isn't prior restraint at all. According to the feds, an NSL gag order "applies subsequent punishment to, not prior review and censorship of, a prohibited disclosure." Of course, the same could be said of almost any prior restraint, which typically involves threats of fines or jail time if information is published without government approval.

The government also compares the gag order to confidentiality requirements imposed on members of a grand jury. In those cases, the government says, it can prohibit disclosure of information obtained as part of the judicial process. It argues that NSLs are no different.

But this argument, too, seems weak. The fact that the government sent the NSL isn't information disclosed by the government, it's information about the government's own actions. Obviously, there are good reasons to ban the recipient of an NSL from disclosing details such as the name of the customer targeted. But it's hard to see how national security would be compromised by a service provider merely disclosing the fact that it has received an NSL. But such censorship does deprive the public of information about how national security letters are being used.

Finally, the government argues that EFF's challenge runs afoul of sovereign immunity, the doctrine that the government cannot be sued without its consent. But constitutional lawyer Orrin Kerr questions that argument, telling the Wall Street Journal that sovereign immunity applies to cases seeking monetary damages, not constitutional cases.

"I would say this is a puzzling argument," Kerr said. "There has to be a way to challenge the constitutionality of the law."

If it weren't warrantless, I would necessarily have a problem with it. I might have issues with specific uses, but that's a different situation.

It's my opinion that there should be very, very few cases when a warrant is not needed, and those cases are basically when the relevant agency sees the offending action. E.g. a cop sees someone dealing drugs, that's a pretty good reason to execute and immediate search; or, to use an example from yesterday, to follow a suspect without an arrest or search warrant.

The last thing we need is to have the EFF go on record saying that corporations have the same rights that people do. That is going to come back and bite them.

I was thinking something similar. I seem to remember on Ars awhile back a corporation using the "free speech" argument and the comments were basically since it is a corporation it doesn't get "free speech" rights.

The last thing we need is to have the EFF go on record saying that corporations have the same rights that people do. That is going to come back and bite them.

They aren't. The 'corporate right' thing is an extrapolation of the rights of the owners of the corporation. 'Corporate personhood' is actually limited. See "United States v. Sourapas and Crest Beverage Company" for an example of such a limitation.

The last thing we need is to have the EFF go on record saying that corporations have the same rights that people do. That is going to come back and bite them.

They aren't. The 'corporate right' thing is an extrapolation of the rights of the owners of the corporation. 'Corporate personhood' is actually limited. See "United States v. Sourapas and Crest Beverage Company" for an example of such a limitation.

The problem is that corporations (well their lawyers) argue that they should have the same rights that people have. I think there was an article about Verizon arguing that net neutrality trampled their right to free speech. We don't want to legitimize those claims because that will end up hurting our freedoms.

I also believe the EFF has fought against corporations when they try to play the "we have rights" card.

Does this sound too much like something someone wearing a tin foil hat would say?

Finally, the government argues that EFF's challenge runs afoul of sovereign immunity, the doctrine that the government cannot be sued without its consent.

This argument would render any case against the government futile, and is an extremely absurd argument. The government will resort to any means to acquire and maintain power. Hopefully "jury box" is sufficient recourse, as "soap box" and "ballot box" obviously don't work.

The problem is that corporations (well their lawyers) argue that they should have the same rights that people have. I think there was an article about Verizon arguing that net neutrality trampled their right to free speech. We don't want to legitimize those claims because that will end up hurting our freedoms.

I also believe the EFF has fought against corporations when they try to play the "we have rights" card.

Does this sound too much like something someone wearing a tin foil hat would say?

The EFF is also protecting the rights of people. If FBI sends a NSL to a company demanding records pertaining to a client, arguably that client's rights are be violated, even if the company's rights aren't.

Regarding the concern about it being a corporation versus an individual, I am on board with that concern. Unfortunately, I highly doubt that the rate of NSL's sent to individuals and especially individuals with the resources to take something like this to the Supreme Court is very high, if it occurs at all. This may be one of those cases where we have to accept the bad parts of this in order to get the good (would that we could go about this differently, but given the process in the US that exists in this time, there is very little impetus for a non-enjoined individual to pursue something like this. In fact, the mere fact that they aren't enjoined would almost certainly cause the Supreme Court to decline to hear the case if it did make it that far).

I'm really puzzled by the argument regarding sovereign immunity. There's plenty of cases of the Federal Government being sued to overturn the Constitutionality of a Federal law. That line of logic is ridiculous.

Let's go back to Weeks v. United States, which set forth the exclusionary rule (that blocks evidence obtained in bad faith from being entered into a trial)? Gee whiz, in a situation where evidence was obtained in a manner inconsistent with our laws, the federal government was sued for the warrantless seizure of evidence. Gee...now, the federal government is being sued for their methodology in collecting evidence (by issuing gag orders) and their argument is..."you can't sue us"? Really?

Odd, because there's pretty good evidence that they have been sued, successfully, and have lost, because of circumstances very similar to this, where the law regarding police action was improper.

Now, this might not be enough to overturn other cases (it'd fall under the good-faith exception), but this argument (regarding sovereign immunity) is just...weak.

While the EFF tries hard. their track record has probably done more damage than good. But at least they are trying. Should they get some traction it would be interesting to see what comes falling out as others would likly have the gag ripped off at the same time.

But at the end of the day I suspect that Americans are just going to have to learn to embrace the fact that the citizens no longer have any say in what their government does. Now we have been told for 2 + centuries that is the reason for the gun laws in the US was so the people could take back their government any time they wanted. Turns out that the laws are just so people can shoot each other so there are fewer for the government to put up with.

The last thing we need is to have the EFF go on record saying that corporations have the same rights that people do. That is going to come back and bite them.

They aren't. The 'corporate right' thing is an extrapolation of the rights of the owners of the corporation. 'Corporate personhood' is actually limited. See "United States v. Sourapas and Crest Beverage Company" for an example of such a limitation.

The problem is that corporations (well their lawyers) argue that they should have the same rights that people have. I think there was an article about Verizon arguing that net neutrality trampled their right to free speech. We don't want to legitimize those claims because that will end up hurting our freedoms.

I also believe the EFF has fought against corporations when they try to play the "we have rights" card.

Does this sound too much like something someone wearing a tin foil hat would say?

To keep my head from hurting, I follow this pattern to see if it makes sense: Considering that whatever Verizon does, it is acting as the agent of the collective owners of Verizon, so would net neutrality violate their free speech rights? If I was running a simple fiber business, and I wanted to put the same restrictions in place, should I be allowed to? Could I defend it on free speech basis?

It's not about legitimizing any claim to personhood; it's recognizing that those 'rights' derive from the rights of the owners.

The problem is that corporations (well their lawyers) argue that they should have the same rights that people have. I think there was an article about Verizon arguing that net neutrality trampled their right to free speech. We don't want to legitimize those claims because that will end up hurting our freedoms.

I also believe the EFF has fought against corporations when they try to play the "we have rights" card.

Does this sound too much like something someone wearing a tin foil hat would say?

I think Solomonoff's Secret explained it well, but my reading of the article was not that the EFF was arguing against First Amendment rights being trampled on behalf of the corporations (although their client in this case was a telephone company), but it's the blanket fact that all information--including the fact that they are issued--regarding the NSLs are banned from the public.

Now, I could just be wishfully interpreting the situation, but overall the EFF is generally better at protecting public Constitutional rights than what you're proposing--although I will agree that given their client is a telecom, this could really backfire against the public's rights.

I wouldn't mind seeing this thing go all the way up to SCOTUS, especially after the ruling for GPS warrant-less tracking. NSLs have become so common now that the rules of the game need to be modified or amended, similar to the broken patent system. Left be what it is will only cause more confusion and possible issues down the road. I'm glad to hear more about NSLs since their so hush hush in nature.

If you support the cause, pledge the same. If all of us hold the line... they will stop with this violation of our legal rights.

Ehud GavronTucson AZ

I was thinking along the same line. Really all that is needed would be for every single company that ever received an NSL to come forward at once. I don't know how many separate companies have received NSLs over the last few years, but I doubt they would prosecute all of them. It might even be enough that any attempt to prosecute would cause economic harm to the country.

The biggest problem of course, like with any form of Government oppression, is synchronizing everyone's actions. No one wants to be the only one to try it because then it is easy for the Government to punish the offender or make an example. I'm not saying NSLs are a form of Government oppression, but they seem to be treading the line of actions that might qualify.

The last thing we need is to have the EFF go on record saying that corporations have the same rights that people do. That is going to come back and bite them.

They aren't. The 'corporate right' thing is an extrapolation of the rights of the owners of the corporation. 'Corporate personhood' is actually limited. See "United States v. Sourapas and Crest Beverage Company" for an example of such a limitation.

More relevent is the oft-cited Citizens United v Federal Election Commission. In it, CORPORATE funds are used to support a political candidate and this donation is considered protected speech. It was not the funds of the leaders of the corporation, it was the funds of the corporation itself. Ergo, the rights being exercised are those of the corporation.

I certainly don't approve of the ruling, but the ruling stands nonetheless. Given that, why NOT use the government's own bad laws against them? I understand the concern with the EFF effectively acknowledging that corporations have first amendment rights, but at the same time they can avoid that point entirely. By focusing on the constitutionality of the gag orders in a vacuum (i.e. the target doesn't matter, just the gag order itself and the justification used for it), they dodge that bullet and may still get the system ammended or (better yet) eliminated.

The last thing we need is to have the EFF go on record saying that corporations have the same rights that people do. That is going to come back and bite them.

They aren't. The 'corporate right' thing is an extrapolation of the rights of the owners of the corporation. 'Corporate personhood' is actually limited. See "United States v. Sourapas and Crest Beverage Company" for an example of such a limitation.

The problem is that corporations (well their lawyers) argue that they should have the same rights that people have. I think there was an article about Verizon arguing that net neutrality trampled their right to free speech. We don't want to legitimize those claims because that will end up hurting our freedoms.

I also believe the EFF has fought against corporations when they try to play the "we have rights" card.

Does this sound too much like something someone wearing a tin foil hat would say?

To keep my head from hurting, I follow this pattern to see if it makes sense: Considering that whatever Verizon does, it is acting as the agent of the collective owners of Verizon, so would net neutrality violate their free speech rights? If I was running a simple fiber business, and I wanted to put the same restrictions in place, should I be allowed to? Could I defend it on free speech basis?

It's not about legitimizing any claim to personhood; it's recognizing that those 'rights' derive from the rights of the owners.

Thing is, it *is* a 'derivation', and that also needs to be recognized.

For example: If Credo ignores the gag order, what will happen? Will Credo be fined/go to jail, or will it be the employee who spoke out that will end up in the slammer?

Its parent company is Working Assets, known for giving millions of dollars to liberal groups, including the Electronic Frontier Foundation.

Why is the EFF considered a "liberal" group?

Because acting openly in the public interest at the expense of corporate or government interest is generally considered "liberal" rather than "conservative," in spite of the fact that "liberal" politicians are just as much corporate puppets as "conservative" politicians.

The last thing we need is to have the EFF go on record saying that corporations have the same rights that people do. That is going to come back and bite them.

NSL aren't just prior restraint against corporations, they're prior restraint against individuals who happen to work for the corporations. They don't just ban the company from discussing it, they ban any employees who happen to know about the NSL from discussing it too. So basically there's no need to say that corporations have rights to fight this lawsuit. If the EFF are playing that line I'm not sure why.

The last thing we need is to have the EFF go on record saying that corporations have the same rights that people do. That is going to come back and bite them.

You have missed the whole point of the whole article. Please read it again.

I didn't miss the point. I chose to start a discussion on why I think it is a bad idea for the EFF to (from what I'm understanding) defend the supposed right of free speech for corporations. I believe it will backfire and harm their future efforts on protecting the rights of real people.

The last thing we need is to have the EFF go on record saying that corporations have the same rights that people do. That is going to come back and bite them.

You have missed the whole point of the whole article. Please read it again.

I didn't miss the point. I chose to start a discussion on why I think it is a bad idea for the EFF to (from what I'm understanding) defend the supposed right of free speech for corporations. I believe it will backfire and harm their future efforts on protecting the rights of real people.

That was already established by the SCOTUS, so I'm not sure the EFF is setting any precedent here

Timothy B. Lee / Timothy covers tech policy for Ars, with a particular focus on patent and copyright law, privacy, free speech, and open government. His writing has appeared in Slate, Reason, Wired, and the New York Times.